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    A Pandemic within a Pandemic: Dealing with Drug and Alcohol Misuse in Lockdown

    Summary

    Head of Employment, Helen Crossland, discusses the rise of employees using drugs and alcohol during lockdown.

    The pandemic has had a revolutionary effect on our working lives. Almost overnight, in March 2020, statistics show 45% of the working population found themselves working from home, compared to 5% prior to that. The current (third) national lockdown has seen the figure contract to 34%, but any prospect of after-work socialising, entertaining, and extra-curricular workplace activities - unless by zoom - remains firmly out of reach.

    Despite that, alcohol consumption since the first national lockdown has reached new highs. For some workers, occasional drinking or use of recreational or prescriptive drugs has morphed into dependency. A third of adults admit to drinking more now than they did 12 months ago and to more frequent binge drinking, while almost half say they start drinking earlier in the day. Pre-pandemic, 25% of adults described themselves as a “risky drinker,” this is now 38%.

    Boredom, excess spare time, loneliness, anxiety, and worries relating to the pandemic are cited as the main reasons by employees for upping their alcohol intake. With many people’s routines disrupted and stress mounting, including working parents trying to manage online schooling, mental health issues and dependency on substances have risen to an all-time high.

    While the hallmarks of drug or alcohol misuse might be less visible or easier to mask for those working remotely, there can still be warning signs. Unexplained or persistent absences, changes in behaviour or attitudes, unexplained dips in productivity, mistakes, performance, and conduct issues could all be indicators. 

    Any business should be prepared, during or post lockdown, for a worker to disclose having an addiction, present as being under the influence of or using alcohol or illegal drugs during work time, or have a suspicion arise that an employee’s use of (illegal or prescription) drugs or alcohol is affecting their work.

    No sector is immune to these issues, but they can prove costly for any business. This can be in the form of behavioural issues (which can impact colleagues and team functionality), general underperformance, absenteeism, unreliability, reduced productivity, negligence, risk of claims, and reputational damage.

    So how should a business act when it suspects or discovers one of their employees is misusing illegal drugs and alcohol?

    Addiction or recreation?

    As a starting point, any action is likely to hinge on whether a distinction can be drawn between a person’s dependency or recreational use of drugs or alcohol, and whether the individual alerts you to the problem.

    If a worker has an addiction to alcohol or illegal drugs, this could have significant effects beyond their control, both physically and mentally. Indeed, the current Government guidance on drug and alcohol dependency during the pandemic, states that “people who use drugs and alcohol may be at increased risks of Covid-19 related illnesses or complications.” In such cases, while the potential risks to the business should not be overlooked, the advice in most cases, would be to treat a dependency to drugs or alcohol as a serious illness and as a capability, rather than a misconduct issue.

    If it is clear the problem is one of addiction, and the individual has volunteered this information, the focus should be one of support and encouragement for the employee to seek help and treatment. This may involve a referral to their GP to be signposted to a local professional organisation, tooccupational health or a specialist substance abuse counsellor, to the company’s EAP, and granting the individual special leave (paid or unpaid) to undergo any treatment. Subject to the worker having been professionally assessed as capable of resuming their duties, their progress and ability to perform their role can then be monitored. Regular wellbeing check-ins with the employee should also be undertaken. If, however, there is a concern that the individual may not be able to offer the required standards of work, or confidence in them has been undermined, a capability (performance management) process may be warranted that might ultimately lead to their dismissal.

    If an individual has not declared any addiction, but by virtue of their conduct or appearance, is very likely misusing drugs or alcohol and it is impacting their performance or behaviour, the employer should proceed with extreme caution and not raise it directly with the individual.

    The approach in that case, could be to refer the employee to a medical expert for an opinion on their health and wellbeing - if the contract of employment or contract for services (if it involves a contractor) allows this. The employer could pass on their concerns confidentially to the specialist, but should bear in mind how any returning information will then be treated, particularly where there is evidence of alcohol or drug misuse, but the employee has not admitted this or accepted that they have a problem.  

    Subject to what is said below on disability discrimination, an alternative way to address this scenario is to default to a standard capability or disciplinary procedure, focusing on the performance/conduct issues at play, and making no reference to the suspicion of underlying drug/alcohol use. This will often be the safest and most advisable option. 

    Regard should also be given to where an individual is known to have used, or is seen in possession of, illegal drugs on the premises. Notwithstanding that this would likely constitute gross misconduct, a business owner could be criminally liable if they know illegal drugs are being used on their premises. Even if an employee has a known addiction, disciplinary action culminating in dismissal would very likely be a justifiable response in this instance.

    Disciplinary route

    Disciplinary policies and procedures do not cease to apply during pandemics and usual processes need to be followed (remotely), regardless. Where the issue is one of misconduct, a formal disciplinary procedure incorporating a reasonable investigation should always be followed before any outcome is decided. That is unless the individual concerned is a contractor and not subject to the company’s disciplinary procedure, or where an employee has short service rendering them ineligible to claim unfair dismissal, has no other apparent claims, and where the risk of not following a formal procedure is assessed as low.

    In the event an employee is dismissed and brings a claim (i.e. for unfair dismissal), an Employment Tribunal would want to review whether it would have been reasonable to defer to medical advice.

    For example, if an employee presents as being drunk during work time, but they claim to be suffering from a medical condition or the side effects of prescription medication that causes symptoms similar to intoxication, the employer would be ill-advised to disregard the evidence without investigating it and before deciding to dismiss.

    Disability discrimination?

    When faced with an employee with an addiction, it is important to consider whether a person’s (suspected) use of drugs or alcohol could amount to a disability, entitling them to protection from disability discrimination pursuant to the Equality Act 2010. The need to consider reasonable adjustments to accommodate their condition, as well as the risk of the individual bringing a disability discrimination claim (on top of any unfair dismissal claim if they are terminated) can then be reviewed. Any individual, including employees, workers, and contractors, can claim discrimination and no minimum length of service is required.

    An addiction to or dependency on ‘alcohol, nicotine or any other substance’ does not constitute a disability under the 2010 Act - unless the addiction has been triggered by using prescription drugs or other medical treatment. However, impairments brought on by addiction, e.g. depression or nerve damage caused by alcoholism, could be classed as a qualifying “disability.”

    Conclusion

    Covid-19 may have created a pandemic within a pandemic. Lockdowns have generated a wave of issues that employers will need to address now or down the track as we return to the workplace. A rise in alcohol and drug problems within the workforce might prove to be one of many legacies of the pandemic, and a growth area that HR professionals and managers will have to grapple with. 

    If you would like to discuss any of the above information, or have any employment related enquiries, please contact our Head of Employment, Helen Crossland, at helen.crossland@seddons.co.uk, or on 020 7725 8034.

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